Tag: service provider

A GHOST tour in Edinburgh was where I first discovered the morbid truth about why Victorian headstones often had bells attached.

Buried by mistake? Ring urgently for service.

We’ve come a long way since then, and thanks to modern medicine can be certain when someone’s been ‘called home’ before doing the needful.

If you’re squirming a bit in your seat at the thought, it’s natural. The D word is nobody’s favourite and talking about it is the biggest slap in the face to any healthy dose of self-denial about what’s at the ‘end of the line’.

Anyway, let’s say you are doing a bit of planning and you’ve sorted out what to wear, who to invite and all that, then as a child of the Digital Age you must also put on your ‘to do’ list who can access your social media accounts and other digital assets when you’re gone.

Apparently it’s a bit of a grey area in legal circles and they want to do something about it.

At the helm is the NSW Law Reform Commission which his reviewing laws affecting life beyond your digital death.

Initially they’ve called for submissions from the legal profession and later in the year the public can throw in their two cents worth (and for those born after 1992, when the two-cent coin was demonetised, it means your opinion).

When making the review public, Attorney General Mark Speakman said: “In today’s hyper-connected world, an unprecedented amount of work and socialising occurs online, yet few of us consider what happens to our digital assets once we’re gone or are no longer able to make decisions.

“This is leading to confusion and complexity as family, friends and lawyers are left to untangle digital asset ownership issues, applying laws that were developed long before the arrival of email, blogs, social media and cryptocurrency.”

What the LRC is more worried about is who can access your digital stuff, but although it’s inappropriate to laugh at a time like this, this quote from Speakman was just a little bit ironic.

He said: “When a loved one passes away, bureaucratic hurdles and legal uncertainty are the last thing families and friends feel like confronting, so we need clear and fair laws to deal with these 21st Century problems.”

Bureaucratic hurdles and legal uncertainty are what families and friends are confronted with when a loved one passes away.

I suppose we’ve really only got ourselves to blame, being the most connected of all countries in the world. So, the review will focus on NSW, Commonwealth and international laws, including those relating to intellectual property, privacy, contract, crime, estate administration, wills, succession and assisted-decision making.

The LRC will scrutinise (their words, sounds expensive) the policies and terms of service agreements of social media companies and other digital service providers.

Facebook is at a bit of an advantage here already, having had lots of experience in this area.

On a more serious note, social media companies do handle sites of the deceased differently, from memorialising them to simply shutting them down.

Having a say in what you’d like to happen, particularly given there can be a story of a whole life recorded there, is important.

If you haven’t made arrangements for anyone to take control of your sites or access private emails, the LRC is considering whether additional privacy protections are needed.

The issue of ownership of digital assets upon death cuts across many different areas of law which is why it’s not clear and fair but complicated.

Here I was thinking I’d just leave a list of my 70,000 passwords for someone else to troll through my social media, blogs and websites if they could actually be bothered.

But really, who could forgo the opportunity to plan ahead by scheduling posts and memes to appear long after I’m gone, saying things like ‘I can see what you’re doing’ or ‘There is no Planet-B’.

We are holding increasingly valuable items online, but the law as to how such items pass on our death is far from clear. However, Google has become the first of the large internet service providers to address this problem with the launch of a tool that will allow users to pass their Google-run accounts to loved ones after they die.

Digital assets can include software, downloaded content, and even online gaming and gambling accounts. In Britain alone, The Economist has estimated holdings of digital music may be worth over £9 billion. It is, however, important to distinguish between what is an online asset and what is personal data and who can access your online accounts after you die.

Google has addressed the issue by announcing on 11 April 2013 that users can now specify which of their “trusted contacts” can access their accounts after they die, or alternatively to direct that their accounts be deleted. The wishes will be implemented after a fixed period of inactivity (a minimum period of three months). The wishes are set up through the “settings” option for the relevant account and effectively allow users to create an online Will. The tool applies to Google-run accounts such as Gmail, YouTube and web album Picasa.

Prior to this, it was uncertain whether family members would be permitted to access a loved one’s online assets and personal data after death, and this remains the case in respect of accounts with other internet service providers. The problems this can lead to are highlighted in the case of Benjamin Stassen in the United States of America.

The Case of Benjamin Stassen

Benjamin Stassen committed suicide in late 2010 without leaving a note. As personal representatives of his estate, his parents sought access to his online records for an explanation as to why he committed suicide. They contacted Google and Facebook asking the companies to release their son’s passwords so that they could access his Gmail and Facebook accounts. Google complied but for months Facebook refused on the grounds of privacy. It was only after the Stassens threatened further legal action that Facebook allowed them access, and even then it was on the basis that the Stassens did not share the content with third parties. Facebook made clear that they were making a unique exception and their policy remains that a user’s account cannot be accessed by their heirs after death.

Most online service providers bind users by their terms of business. Personal representatives can close a Facebook account or turn it into a ”memorial page” but cannot access it. Google will supply executors with copies of e-mails from a Gmail account but again will not allow access to a deceased user’s account.

Benjamin Stassen’s parents obtained a Court Order forcing Google and Facebook to give them access to their son’s records. Google complied with the Court Order. However, whilst the Order released Facebook from their duty of client confidentiality, the company is standing by its policy of not allowing personal representatives access to accounts, and to date has not allowed the Stassens access to their son’s account.

Personal Data

You can see why Facebook did not want to grant Benjamin’s parents access to his personal data. The law in relation to privacy is a tricky one. The law in the US is, of course, different to the law in England and Wales. In England there is no specific law about privacy. Article 8 of the Human Rights Act 1998 is often cited by celebrities in relation to a breach of privacy, but this only applies to state bodies and not individuals and there is no specific case law about the release of personal data to executors or personal representatives.

Online Assets

The emergence of cloud computing has led to assets being stored on remote servers which may be located in jurisdictions outside the UK. For example, Apple’s i-Cloud which stores music, films, TV and any other downloads made by a user together with e-mails and personal data. Apple’s policy is to delete all e-mail and data from i-Cloud following the death of a user. However all content downloaded on its i-Tunes service is subject to a licence which can be revoked on a user’s death. It is not clear how Apple will treat downloaded content following a user’s death but it seems that they would have the right to revoke the user’s licence and delete potentially valuable content.

As digital assets are not tangible property it seems unlikely that a person could bequeath their online music collection to beneficiaries in their Will in the same way as they would could leave, for example, their C.D. collection. This is because the C.D. collection is a physical object which can be left in a Will whereas digital assets are not defined by law in the same way.

Clearly the law in this area has not yet caught up with technology. However, enterprising companies have exploited the gap in the market for bequeathing digital assets. For example, Legacy Locker allows people to store online passwords so that executors and personal representatives can access online accounts following their death.

Creating an inheritance for your digital assets and data

The best way to deal with online assets and personal data is to leave specific instructions in a Will stipulating that executors may have access to online accounts and whether these accounts should be deleted after death. As a Will becomes a public document after death, it may not be wise to include passwords in the Will itself, in case a third party gains access to dormant accounts which have the same passwords. However, a Letter of Wishes, which is a personal document to executors, could be written setting out usernames, passwords and specific wishes in relation to individual accounts. In addition, those who have Google-run accounts should also update their settings for the relevant account to mirror the same wishes in case there are any problems with beneficiaries accessing the accounts with details given in the Letter of Wishes.

If a user has especially important online assets or data, such as valuable emails or photos, it would also be wise to create a hardcopy of these or save them to a disk or memory stick. Hardcopies can pass under a Will as physical property and will pass to whoever inherits the user’s personal effects (or the user can name a specific person to inherit them).

However notwithstanding these steps, executors are at the mercy of service providers and problems may be encountered if service providers do not recognise the consents given in a Letter of Wishes. There may also be jurisdictional issues at stake. However, for the present (or at least until other service providers follow Google’s example or a test case is taken), setting out express instructions in a Letter if Wishes gives the user the best chance of enabling his loved ones to inherit his personal digital effects.

When approaching the difficult task of accessing websites and online accounts, dealing with it is divided between two options: having the password or not having the password.

If you have a password – you can get in

If you don’t have a password, but have access to an e-mail account, in most of the websites you could click on “I forgot my password” and a link will be sent by e-mail, to create a new password. Once you have created it, you can get into the website / account

If you haveneither a password nor access to an e-mail account, the dealings get more complicated, because they involve approaching the online services providers. Some are already set for dealing with death of clients and present clear policies and guidelines in this regard, but some are still grappling with it or have done so until recently. Twitter, for instance, published their policy only in August 2010.

Another element you’ll need to take into consideration is TIME. In certain cases, only a narrow window of time is available through which you could take care of the deceased’s digital legacy:

On facebook, for instance, at any moment someone might turn his or her profile into a memorial profile (your consent isn’t required and you’ll find yourselves locked out of the account – even if you have a valid password). Therefore, the first thing I recommend you do is download a copy of the profile’s content (for “how to” scroll down, under “Facebook”).

Some of the email services providers might terminate an account which hasn’t been used over a certain period of time, depending on their Terms of Use. Therefore I recommend that if you have the means to do so, go into the email account, just to create some activity and prolong the window during which you can make up your mind.

Sometimes you’ll have access to accounts only for a limited amount of time: if the deceased passed away while his / her smartphone / tablet / laptop / computer was still logged on, you would still have access through this device to his or her online accounts. But eventually you’ll be prompted to re-enter the passwords, and when you can’t provide one, you’ll be locked out of these accounts. Therefore, I recommend you take advantage of this access while you have it, and set as many new passwords as you can, to ensure you have independent access to the accounts – at least to begin with. Maybe later on you’ll decide to close the accounts, or not to go into them, but at least you’ll have a choice.

I know you already have so much to handle after the death of a loved one, and maybe his or her digital legacy doesn’t strike you as urgent, but unfortunately, by the time you do get around to dealing with it, it’ll be too late, and invaluable, precious data will be permanently lost – in a way which cannot be restored.
Entrustet used to have a wonderful blog, and in it a “Digital Executor Toolbox” could be found. Unfortunately, when Entrusted was purchased by SecureSafe, the blog went offline, which is a pity. It used to have useful information about how to close online accounts and delete digital assets after the user has passed away. I hope it will go online again. In the meanwhile, I have compiled a list here for your convenience. A click on each link will take you to the relevant page of the online service provider.International companies (Israeli companies listed below)

“If an individual has passed away and you need access to the contents of his or her email account, in rare cases wemaybe able to provide the Gmail account content to an authorized representative of the deceased user. …. Any decision to provide the contents of a deceased user’s email will be made only after a careful review, and the application to obtain email content is a lengthy process. Before you begin, please understand that Google may be unable to provide the Gmail account content….”

Between the time I wrote this post as a draft and print-screened this page and the time I published this post, YouTube took their policy offline. Right now there isn’t an online policy regarding a deceased YouTube member’s account. I’ve sent YouTube a query about this and will update this post once I have news.

“The Microsoft Next of Kin process allows for the release of Hotmail contents, including all emails and their attachments, address book, and Messenger contact list, to the next of kin of a deceased or incapacitated account holder and/or closure of the Hotmail account, following a short authentication process. We cannot provide you with the password to the account or change the password on the account, and we cannot transfer ownership of the account to the next of kin. Account contents are released by way of a data DVD which is shipped to you.”
Linkedin

“To close the account of a deceased LinkedIn member you’ll need to submit a Verification of Death form. Note: This form requires an email address registered to the deceased member’s account. Without this important piece of information, we will not be able to address your request.”

“We will only remove or preserve the profile of a deceased user at the request of the next of kin or at the request of the executor of the estate. Myspace will not allow access or update the log-in information for a profile for any circumstance… However, if you have access to the email account tied to the Myspace profile, you can retrieve the password by clicking www.myspace.com/auth/resetpassword“.

“In order to protect the privacy of the deceased user, we cannot provide login information for the account to anyone.”
My advice is: if you have access to the Facebook account of your loved one who passed away, the first thing you should do is download a copy of it (General Account Settings > Download a copy). If someone were to notify Facebook that the account owner has passed away, Facebook will block all access to the profile and you will not be able to get in – even if you do have the password. Facebook’s policy is controversial: anyone can notify that a person has passed away, not just members of his immediate family. Hence, the spouse / child / parent might suddenly find themselves with the profile turning into a deceased person’s profile, without their request. Once a profile is “memorized”, as they call it, only friends can see it and locate it in search results see update below, and some of the content disappears while some of it remains – and you have no control over it. Very little information is required in order to report someone as gone: Report a Deceased Person’s Profile

Following John Berlin’s appeal to see the ‘Look Back’ video of his deceased son, Jesse Berlin, Facebook now allows members of a deceased user to watch his or her ‘Look Back’ video. Please note: a request to see a Look Back video of a user who passed away equals a request to memoralize the account, even if this wasn’t your intention, so please make sure you understand the consequences of your act before making this request. If you are certain you wish for his or her account to be momoralized, or if the account is already memoralized, you can make the request here. Thank youDamien McCallig for highlighting this point.

Facebook took this opportunity to also change the privacy settings of memoralized accounts: from now on, the content will remain visible as the owner defined it while he/she was still alive. Meaning: if certain content was made visible publiclicly, it will remain so. If certain content was made visible to friends of friends, it will remain so – unlike what the policy was up until now: that once an account was memoralized, all the content was visible to friends only.

A word about Facebook‘s policy of memorializing an account: Of course this is very personal, but I think and feel it is better to keep “running into” my dead brother’s profile on Facebook as if he were still alive, than to have his profile declared as a profile of a dead person. I do not wish for certain content out of his profile to disappear, as it will disappear without any of us having a say about what stays and what disappears – it is determined by Facebook’s policy only.

Ever since my brother was killed, he has received hundreds of friendship requests, and as far as I can tell, all are by people who realize he is dead. I am puzzled by this: Is it their initiative, or in response to Facebook suggesting him as a possible friend? Is it their way of showing their respect to him? Their way of expressing their sorrow over missing out the opportunity to be his friends while he was still alive? Do they expect their request of friendship to be accepted? Is there a bit of voyeurism in it – to see which content they will be granted access to as friends, that they couldn’t see before? How would they feel if “he” will suddenly approve their request, since it will be clear it was not done by him but by a family member?

Since approving a friendship request grants access to certain content which only friends can see, I feel no one has the right or authority to approve friendship requests but the deceased.

Israeli Companies
None of the Israeli companies publish their policy regarding death of a client online. I gathered the following information from each one as a service to the readers of this blog.Walla!
Walla! will grant you the password to the mailbox as soon as you follow their clear policy in this regard. Email them at: support@walla.net.il and ask for a copy of their instructions in English (In a nutshell, you will need to provide both proof of death and proof of your relation to the deceased). You should contact them as soon as you can: an e-mail account that hasn’t been used in 3 months might be closed by the company.012 Smile
Unfortunately, there is no point in contacting this company. They will only grant access to the e-mail under court order. Contact your lawyer instead.Bezeq International
You can notify Bezeq International someone has passed away either by phone: *3014 or by chat with a customer service representative. You will only need to supply the ID number and the last fourdigits of the method of payment of the deceased, and they will give you the e-mail password. You will need to provide a copy of a death certificate, oddly enough, not in order to gain access to the e-mail account, but in order to receive a refund for unused Internet services.
If you wish to keep the e-mail active, you can do so: the first 6 months for free, and from the 7th months onward by paying 9.90 NIS per month.TheMarker Cafe
You can notify TheMarker Cafe by phone 03-5133697 or e-mail support@themarker.com, but they will only grant access to the account under court order.013 Netvision
You can notify Netvision by phone: *3013 or by e-mail service@netvision.net.il. As soon as you present a copy of the death certificate, ID number and last four digits of method of payment, you will be granted full access to all the services the deceased was subscribed to – including e-mail and cloud backup. This is relevant however only if they had a private account. If they had a business account, only the owner of the company can contact Netvision, or the person registered at Netvision as the contact person for the company the deceased person worked for.Tapuz
You will have to have a Hebrew speaking person next to you, as Tapuz can only be contacted by a Hebrew form in their website. They will only assist you in gaining access to the account if you have access to the e-mail address that the person who passed away registered with. If you don’t, they will assist you only if there is a legal cause for it, or under court order.Isra-Blog
Isra-Blog is part of Nana10 and can be notified about a death of a blogger by e-mail: israblog@nana10.co.il. They don’t have a consistent policy: in some cases, the blog will be taken offline. In other cases, a family member will be granted access to it – depending, among other factors, on the family wishes.Nana10
You can contact Nana10 by e-mail support@nana10.co.il, but access to the mailbox will only be granted under court order.
What is so frustrating about the long, complex dealings with the various Internet providers and their different policies – which includes heartache and helplessness – is that the people left behind after the death could have easily been spared all that – if only the deceased had left their usernames and passwords behind. They could have accessed their accounts without the provider ever knowing the user was dead. Several products (some of them for free) offer this exact service: keeping track of websites, user names and passwords, along with instructions of who may access what, are detailed in this post: Managing Your Digital Legacy.

Abstract: The internet has steadily become integrated with our everyday lives, and it is scarcely worth remarking that the quotidian footprint we leave is increasingly digital. This being the case, the question of what will happen to our digital legacy when we die is an increasing important one. Digital accounts containing emails, photos, videos, music collections, documents of all kinds, social media content, eBooks and the like, all trace the life we have led, and if they are to be conserved and bequeathed, if family and friends are to benefit from this often highly emotive and evocative desiderata, if history is to be recorded, we need to prepare these accounts and assets for the inevitability of death. A difficulty though, is that the demands of curating such a legacy are formidable, the importance of creating digital archives from personal data contained in online accounts is not well-established in the public arena, and the products and services available to facilitate this are largely inadequate. Future generations and future historians are the poorer for this. In this presentation we will point out some of the difficulties involved in curating and bequeathing a digital legacy, and suggest a partial remediation.

Introduction

For the celebrities of the 20th century a life in the public spotlight was a matter of record, with key events, relationships and achievements recognised and documented for private and public purposes. For these individuals, a legacy of letters, sound recordings, videos, private papers, personal records, photos, and films, all stored in many places and in many forms, needed to be captured, managed and curated for the historical record; to perhaps be donated to an institutional archive or given to family members for use in family histories and memoirs. It is arguable that today this situation has been democratised, and in a sense, everyone with access to digital technologies is a multimedia celebrity. In a digital age, “Evidence of Me…” abounds and Ann-Clare’s carbon-paper is not required (McKemmish 1996). Ordinary people are now routinely creating a digital record of their everyday life. For some, this record is a self-conscious autobiography. Digital media and social network sites are mobilised in order to create a reflexive social and personal identity; images are carefully selected and annotated; “likes” are used strategically; publics of various kinds are assembled to witness, and boundary work is conducted to define these publics; stories are told to create and maintain links between that online identity and those publics. Our personally constructed digital legacy will commonly include the contents of email accounts, the contents of social network accounts on services such as Facebook and LinkedIn, music accounts on services such as iTunes and Spotify, images on services such as Flickr and Instagram, videos on services such as YouTube, and documents of many kinds on cloud storage services such as DropBox.

In parallel, a distributed and diverse record is assembled across hundreds of online sites by default, as our digital inputs and outputs are routinely captured, stored and mined for the personal-profiling data used to inform those with an interest in commodifying our identity as consumers. In both these ways, in the course of everyday life, we are assembling a media legacy of considerable volume, personal importance, and arguably historical importance. For those with a sense that the accumulation of personal media is a form of self­witnessing, and the aggregation of this media narrates a form of autobiography, it is important not only that it be authored appropriately, but that it be successfully bequeathed. Our digital legacy represents a narrative of a life lived, is of obvious personal, familial and communal value, and is also of wider historical and social value. Histories told through the exploits of the great, the good and the powerful will no doubt continue to abound, but history also has a profound interest in the lives of ordinary people leading ordinary lives, and to the extent that these lives are digitally mediated, so too is the historical dataset.

There have been a number of practical responses to this relatively new demand, such as changes in policy by Google and Facebook, and the establishment of commercial “legacy management” service providers and private “digital registers” to accompany a last will and testament. However, online service providers could offer much more leadership in this respect, as there are few established mechanisms for re-purposing the digital artefacts of the deceased, or to ensure their long-term preservation. Similarly, professional archivists have paid scant attention to personal records, as compared to institutional and commercial records (Cunningham 1999; Hobbs 2001), and even less attention to the DIY archiving needs of ordinary people.

If capture and preservation is important, it is equally critical that some elements of a digital heritage are destroyed upon death, or at the very least, remain inaccessible. As many have found to their mortification, once moved online, files are reproducible, searchable, are often re-contextualised, and can be extraordinarily difficult to delete (e.g. Mayer­Schönberger, 2009); yet the sensibilities of loved ones, the management of reputation, and a defence against identity theft may well depend upon the ability to remove these records from penetrable digital spaces.

In either case, the question of the curation and bequeathing of a digital legacy must be addressed. The history of ordinary people, as told through their correspondence and their material possessions, has long been a precious resource for families and for historians alike. Businesses, institutions and other organisations have responded to the challenges of the storage and re-use of digital assets by building digital repositories at an institutional level, and at a national and international level. However, personal data – the quotidian data relating to an individual’s life – has until very recently been neglected in the debates and practices about digital archives and access to archives. In this context the problem of what happens to a digital legacy and how it may be passed from one generation to the next have become important questions.

The literature on questions related to death and the Internet is broad, covering many fields and approaches to study. There has been growing interest within the archival, library studies and digital humanities communities about the issues surround the preservation of personal data and the creation of ‘personal digital archives’, but few studies, with one notable exception (Bellamy et al 2013; Gibbs et al 2013b) focus specifically on death and bequeathment of data. The larger body of work on online memorialising has largely been positioned within a research approach that considers the psychology and sociology of grief and support, and this connects with a wider literature in the social sciences that examines death, grieving and memorialisation (e.g. Aries 1983; Hockey, Komaromy and Woodthorpe 2010; Kellehear 2007; Metcalf and Huntington 1991; Robben 2004).

Studies of online memorialisation have examined the extent to which the sites facilitate the sharing of grieving, remembering, commemorating and providing social support (e.g. Jones 2004; Gibson 2007; Roberts and Vidal 2000; Sofka 1997; Veale, 2003, de Veries and Rutherford, 2004; Walther and Boyd 2002). More recently, following the popularisation of social software, attention has turned to social networks with particular focus on the practices of teenagers (Carroll and Landry, 2010; Williams & Merten, 2009). Others have considered memorials and commemoration in other online place such as video games (Gibbs et al, 2012; 2013a; 2013b). More recently, so called RIP Trolling of memorial sites and attendant issues of responsibility have been considered (Phillips 2011, Kohn et al. 2012). Interaction designers have also become increasingly interested in addressing the many design challenges presented by the development of online memorial practices (Brubaker and Hayes 2011; Mori et al 2011; Odom et al. 2010) and have contrasted the way various online platforms shape commemorative practices (Mori et al 2012). Whilst there is a growing literature attending to practices and forms of online memorialisation, studies of the management of digital legacies have been limited (see, for example, Carroll and Romano, 2011).

To examine these issues the authors undertook a project funded by the Australian Communications Consumer Action Network – a peak-body consumer advocacy, research and education group whose work is focused on the Internet and telecommunications services. The project involved empirical research on consumer issues in planning and managing death online, and involved developing accessible educational materials for Australian consumers that summarised the social, legal and economic issues, and offered guidance for action (for the report see: Bellamy et al 2013). The advice offered was informed by primary sources such as the Terms of Use Agreements of popular internet sites and services, many secondary sources from the legal literature and elsewhere, and key-informant interviews with managers and policy makers drawn from relevant industries and professions. These industries and professions comprised telecommunications companies, social network software managers, intellectual property lawyers, professional archivists, online memorial companies, the Victorian State Trustees, and members of the clergy within Australia. The report provided an account of the legal situation as it pertains to a digital legacy, and provided what we were given to understand to be “best practice” in curating and archiving that legacy. In this paper we revisit this advice, and it will be seen in the account that follows, that though the suggestions may make sense in certain legal and archiving discourses and practices, there are significant problems in adhering to it on any sort of popular scale. We conclude that the steps suggested are not likely to produce the desired result.

We turn now to identify some of the issues associated with constructing a personal digital archive, to summarise the advice received on addressing these issues, and point to the problems associated with acting on this advice. We then conclude with a brief gesture towards a potential (if partial) remedy.

Problem: are these files mine, and who can access them?

The issue of who owns what in the digital realm is complex, is an important consideration in determining what may be archived and bequeathed to others, and is a major obstacle to curating a digital legacy. Ownership of emails, photos, blogs, web-sites and URLs, electronic documents, music files, the content uploaded to social media accounts and so on, usually depends in a legal sense upon the particularities of the Terms of Use Agreement that were entered into when the deceased signed-up for the online service. These terms of use set out the conditions of posthumous access to digital assets and their use Overarching contractual rights, intellectual property rights, and various forms of copyright law, all of which vary from jurisdiction to jurisdiction, further complicate the situation. Should the files in question (or copies of the files) be stored locally on a hard-disc, a USB stick or the like, the letter of the law may not make any practical difference to bequeathing the files, however, the recent stampede towards the use of cloud services makes it increasingly likely that one’s legacy is held remotely on a server, very often in another country and in another legal jurisdiction, and is only under one’s control with the grace of the service provider.

So while there are well-established procedures for locating, valuing and transferring ownership of material property such as real-estate or cars or books, the task of locating, accessing and disbursing digital assets after death is made more difficult by the ambiguity of ownership and terms of use that prevent third-party access. For example, online services such as Yahoo! have Terms of Use Agreements that disallow the transferring of an individual account to another individual, indeed “some [commentators] believe Yahoo!’s policies regarding customer information stored on its e-mail server are stricter than hospital policies regarding medical records” (Tarney 2012 p. 780) . Companies such as Yahoo! have agreed to provide a service to a named individual and the agreement and the service provided terminates upon that individual’s death, generally operationalised through a formal process, or after a minimum period of inactivity. Many years of photos, videos, text files and other digital files and documents uploaded to an online service may be lost forever if posthumous access to them is not arranged, or local copies are unavailable.

A common-sense solution to the problem of ambiguous ownership and granting third­party access is for the individual to provide a list of services (Flickr, PayPal, Facebook, Dropbox, etc.), and, for each service, to provide the relevant username and password, along with instructions for friends, relatives and the executor of the will to execute upon one’s death in a so-called “digital register” – further detail on this is provided later in the paper (Bellamy et al. 2013; Gibbs et al. 2013c). Common-sense though this may be, it is against the terms of agreement of many service providers who prohibit the provision of one’s username and password to a third party, and forbid any individual from accessing another person’s account, deceased or not. Many US based service providers are in this category. Other online service providers (such as Australia’s iiNet and Telstra) do allow this use of a digital register and consider an individual who has been given the username and password to be an authorised agent of the account’s owner. Of course, for all practical purposes, the identification of the person using the username and password is difficult to verify.

Another common sense solution is to maintain local copies of assets stored on the internet. Local copies are under direct rather than indirect control, and the problem of access is alleviated. In many cases local files pre-exist remote copies, as internet files are in fact copies of local files, but as the use of remote file-servers overtakes the use of local storage devices, and as applications increasingly save direct to these file-servers, this situation is unlikely to remain the standard. The local storage of files in addition to “Cloud” storage also generates its own problems – in particular problems of versioning, and of course does nothing to alleviate the problem of archival management, addressed next in the paper.

Problem: curating and bequeathing a local digital archive

Local copies of your files should be in a format that can be used at a later date and are of the best possible quality. There are a number of considerations here, in a situation where hardware, application software, file formats and operating systems all rapidly become redundant, but generally it is important that the files saved are in popular open-source formats that are in general use, such as JPEG or TIFF for images, or MP4 for video, and are transferred from old hardware to new as the new becomes mainstream. If a MS Word document can be saved as a plain text file or an RTF without losing too much of its structure, then it should be saved as a plain text file to obviate future dependence on proprietary software which may or may not exist for the next generation. Some organisations have published tips sheets on creating and maintaining digital archives (e.g. the National Archives of Australia), and the National Archives of the UK have some good guidance on selecting file types (see, for example, http://www.nationalarchives.gov.uk/documents/selecting-file­formats.pdf).

Trained archivists recommend that personal archivists periodically download and archive all digital files (photos, tweets, videos, documents etc.), and store them locally on a removable storage device, such as a thumb-drive or portable hard-disk, in order to have personal control over that archive. Using this method it is possible to curate the storage disks in such a way that only the files that you wish to include are available to friends and relatives, or to future historians; it is possible to use a bespoke organisational structure that suits the files and their content, rather than relying on the default structure of the online service; and your archive is not dependent upon the good grace and continuing viability of a commercial entity.

Once all the relevant files are gathered locally in one place, they should be provided with the context that gives the file meaning and purpose for others. Following Haraway (1991) and others who have explored emergent and situated knowledges (Bhavnani, 1993; Feinberg, 2008; Ihde, 2012; Law, 2009; Sassower, 1994), the epistemological foundation of knowing is relational, and if making meaning and knowing is at all relational, it is relational in the case of legacy objects. For example, a photograph of the London Bridge not anchored by context invokes quite a different meaning when situated as holiday snap taken three weeks before the death of spouse. A way to begin to provide context is with a simple folder structure. There are no strict rules here, but generally the simpler and more straight-forward the better (such as ‘family photos’, ‘Europe trip 2010’, ‘Pam’s music’, ‘emails to Gavin’ and so on). ‘Metadata’ or contextual information about the items should also be placed in the folder so others know of its context and potential significance. This may be in the form of a simple text file that describes what is in the folder, where it was created and why, dates, and any other important information considered relevant for use in a family archive, but it can work down to fine-grain detail related to each file. Also consider using face-recognition software such as Google’s Picasa to automatically name-tag all the individuals in your photos for the benefit of future generations.

With all the data arranged in folders and in one-place, it may be then placed on a removable storage disk. Storage devices such as DVDs, CD ROMS, and Flash discs should not be used because they are fast-changing formats and may not be accessible in the future. It is recommended to use two removable hard-disks, one to be kept in a safe location and one to be given to a trusted friend. The discs must be updated regularly to make sure they contain relevant information, and also the actual discs should be replaced every 2-5 years, and should be replaced with new storage technologies as they become standard.

Digital preservation is an active and ongoing process and it is important to intervene in the process and manage digital legacies over time. Another tried and trusted method is to print out important documents and images and store them in a filing cabinet as paper remains one of the most enduring preservation formats.

In very recent times, online companies have provided facilities to download and archive personal data. For instance:

Facebook allows individuals to download all the information they have shared on their timeline including photos, status updates, and comments. There are also expanded options that allow individuals to view cookies, logins, logouts and almost any other way of interacting with the site (See: https://www.facebook.com/help/131112897028467/).

Downloading and archiving an online Gmail or Hotmail account is a little more difficult as it requires the installation of a local software application such as Thunderbird to download all the emails so that they can be read and stored locally. Once emails have been downloaded, it is possible to export them in different formats and in complete folders. The emails can be associated with a particular project or a particular family member or friend. Other emails that are either personal or irrelevant can be deleted.

These downloading facilities are welcome, as is the advice of archivists, but the task of local archiving remains onerous in the extreme. Can we really expect people to engage in the time consuming and non-trivial task of categorising tens of thousands, or in many cases, hundreds of thousands of files, determining which are to be archived and bequeathed and which are to destroyed, then providing the metadata for future generations to make sense of the files, then writing them to synchronised hard-disks and ensuring the security and working order of those disks, and of course, doing this time after time, year after year, to ensure currency and completeness? This is not being done on any sort of scale, and there is clearly a lot of work to be done to make this a practicable and commonly performed task.

We move now to consider the particular media that may be included in an archive.

Problems curating and bequeathing digital music and eBooks

We all know that we can learn a lot about a person by flicking through their music collection or by examining their book shelves. We also know that music and literature is precious, and collections spanning decades make for a very valuable legacy for loved ones. Books and music speak of one’s sensibilities – intellectual and emotional – and speak of one’s shaping by a culture, and are integral to a personal legacy. Passing on physical vinyl records, CDs and books is easy; passing on digital music and eBooks is more problematic.

Digital music is usually licenced for individual use and thus cannot be legally bequeathed to another. Companies such as Apple have complex consumer software licences that once agreed are binding, and certain legal rights are established (as when a document is signed). In effect, when using a service such as iTunes the individual is licenced to listen to the music file, but does not own the music file. The licenses are in place to protect the producers of the music, who pass it to Apple under the provision that Apple will protect their interests over the interests of the consumers.

A few of the important considerations of Apple’s Terms of Agreement is that Apple will not replace digital files, files can only be downloaded once, and the unauthorised transfer of files is illegal under copyright law. If a file is lost, Apple will not replace it, and hence personal backups are important.

Other companies have different consumer software licences that set out what can and cannot be done with a digital file (such as Creative Commons licenses), and some digital audio files are in the public domain and have few or no intellectual property rights.

As with digital music, eBook files are usually licensed for individual use and cannot be bequeathed. The terms of service give buyers the right to use the file, that is, read the book, but they do not own the file, their right to read may expire on a certain date, and the file can often only be read with proprietary combinations of hardware and software. On occasions, your license may be extended to friends or family, but the ownership of the file still remains with the publisher. An important exception to this are books that are out of copyright and have been digitised and made available under a Creative Commons licence by organisations such as Project Gutenberg and Google Books.

There are many advantages to eBooks, but bequeathment is not one of them. If an individual is concerned about the inter-generational longevity of their library, it is best to buy physical copies of the book in the first instance, and not the eBook version. The physical copy can then be straightforwardly bequeathed.

Like music, books are an important component of many people’s biography, and again, form an important component of family history. As things stand at time of writing, eBooks are lost to legacy, and the seminal books that have contributed to a biography, and should be passed to others, need to be in physical form.

Problems curating and bequeathing images

Passing on digital images is less problematic than digital music or books in so much as the copyright of a photograph is owned by the individual who took the photograph, unless the rights are specifically passed to another. Uploading a photo to the web doesn’t change this and copyright is retained by the photographer. Thus photos can be bequeathed to another person in a will and many professional photographers, who earn a living from their photos, do this as a matter of course.

In the case of popular services such as Flikr, users may choose an All Rights Reserved licence for their uploaded photos, or a Creative Commons License. A Creative Commons License is a series of licenses that limits what users may and may not do with photos, such as reusing them for commercial purposes or using them without attribution (For further information see http://en.wikipedia.org/wiki/All_rights_reserved, and http://en.wikipedia.org/wiki/Creative_Commons_licenses). Although online systems are convenient places to share photos, they are often published in a compressed and low-quality format. Again, it is best practice to retain local copies, in the best quality possible, along with

the important information about where they were taken, dates, and people in the photo. Many digital cameras allow ‘metadata’, to be written into the file (such as time and date, GPS, and camera settings for the photo), but this will not provide future generations with social context, which will need to be added once the file is transferred to a computer.

In the case of other popular systems for publishing photos, such as Facebook, the copyright is still owned by the photographer. The terms of service grant Facebook the right to reuse personal photographs in certain features of the system, but this is primarily determined by the user’s privacy settings. Other systems may have differing copyright provisions and it is always prudent to check the Terms of Service before uploading images to a particular service.

In many different cultural contexts, photos reveal a significant component of family history over several generations and considering how they will be maintained and bequeathed is important. In other cultural contexts it is important that photographs not be viewed at all. For example, many indigenous Australian communities do not approve of the display of photographs of deceased people. Use of the names of deceased people is problematic in many of these communities. Other images should only be seen by those in community, and when in community, some should be viewed only with the permission of particular custodians and in particular circumstances.

Even where these cultural sensitivities do not apply, and the personal archivist’s objective is to make as much information known to as many people as possible, the problem of curating and managing an archive of what may be tens of thousands of images remains formidable. These problems may not be new, as anyone who has leafed through an old photo-album will attest (who are these people? where was this taken?). However, the sheer quantity of images generated in digital formats not only exacerbates these problems, it makes them virtually impossible to overcome with traditional manual methods of curating and archiving.

Problems curating and bequeathing video

As with photos, the copyright of videos uploaded to popular systems such as YouTube is usually owned by the person who recorded the video, so videos may be legally bequeathed. However, once uploaded many of the exclusive rights that the individual has over the video are granted to YouTube in the terms of service. YouTube may, for example, republish your videos in other parts of the YouTube system, and use your videos to raise revenue through banner advertisements. However the license that grants YouTube the rights to use uploaded videos is terminated once the videos are deleted from the service (See YouTube’s Community Guidelines and Terms of Service for further guidance: http://www.youtube.com/static?template=terms).

Along with photos, videos now form an important part of family history so again, it is important to consider their long term maintenance and bequeathment. As with photos, it is best practice to keep the best possible copies of the digital files in a local folder using popular formats such as Mp4, ensuring that additional contextual information accompanies the videos to enable future generations to appreciate their content. Of course, the previously mentioned curatorial and management problems remain.

Problems curating and bequeathing email

Email is one of the more important communications mechanisms in the digital age; indeed, email is commonly regarded as the internet’s “killer application” and has replaced paper letters, memos and notes in many social contexts. Access to correspondence is a very important issue for family history, community history, and history more generally. Correspondence has long been a primary evidence for the construction of these histories, and the move from paper to email has in some contexts severely compromised this important source of evidence. The archiving and bequeathing of emails poses some of the same problems encountered with paper, but also some new ones.

Like paper letters, emails are usually context-specific, personal in nature, and not meant
for broader public consumption. Email services such as Gmail and Hotmail are conscious of this and have strict rules that forbid access to the email associated with a deceased person’s account. Thus emails in general will be inaccessible and destroyed if provision for access has not been made for them before the death of the account holder.

Generally speaking, access to another person’s email account is not available except under a court order, even to next of kin (and from a privacy perspective, especially not to next of kin). Also be mindful that although one generally stores one’s email on the email server, email service providers will only store emails for a defined period of time, after which expired emails are deleted. This being the case, if one wishes to bequeath one’s emails, one must take steps to archive and store them locally, rather than relying upon the service provider to make them posthumously available.

Even though some employers permit the use of their email system for private purposes, many people consider it good practice to use a separate system for private correspondence, perhaps Gmail or Hotmail, rather than using an employer’s system. Work-related email systems usually have their own privacy and ‘terms of use’ policies, and employees using this system for private purposes may have little or no control over these terms and the way they impact email correspondence.

If personal emails are to be archived, they should be appropriately filed and stored offline. A separate email account, or several accounts each with a different purpose, makes this process clearer – though it must be said, this may be more inconvenient than a single account for day to day use. Organising personal and professional correspondence in a thoughtful way is necessary if it is to be effectively archived and bequeathed. Most email clients enable emails and their attached documents to be stored in nested folders, and the structure of these folders should clearly separate out different categories of email, represent the context in which the emails were produced, lay out a coherent history of correspondence, and should be comprehensible in the future not just to the original sender, but to their beneficiaries. This is not a difficult task in itself, but it is time consuming, and requires forethought and motivation.

Problems curating and bequeathing mobile accounts and texts

The procedure for dealing with mobile phones and the SMS texts and data that they contain differs between services providers, but in general, most of the larger service providers have established policies to deal with the death of a client. Procedures usually require the next of kin to contact the service provider on their customer support line and notifying them of the death. The next of kin or authorised representative must provide the appropriate evidence of death, such as a funeral notice, a death certificate, or a statutory declaration confirming authority to act on behalf of the deceased. The next of kin or authorised representative is then required to download, complete, and submit a form outlining what is to happen to the particular accounts.

There are usually two options for dealing with a deceased person’s account; the account may be closed, final bills paid and all data (text messages, favourites, contacts, recent calls etc.) is then deleted. However, accounts may also be transferrable to the next of kin by the authorised representative so that the service is continued. This means that the same mobile phone number is retained and call records, text messages and so on may also be available.

Telcos do not provide for a person to request that their phone account be deleted upon their death, which does raise some privacy concerns. However even if this was the case, there is still the possibility that the next of kin and authorised representative will have access to the phone-handset itself, and if unlocked, will be able to access texts, recent calls, contacts and so on, regardless of the telecommunication companies policies.

Problems curating and bequeathing websites and domain names

Web sites and domain names may be bequeathed to another person with instructions given in a Will and accompanying digital register (see the following section for details). In Australia for example, the regulator of domain names (.auDA) has a policy for transferring ownership of domain names to a deceased person’s estate that applies to the particular domain registrar

that the domain is housed (such as Melbourne IT or Netregistry). In the event of an individual’s death, the domain registrar should be contacted and appropriate evidence of death supplied. It is then a matter of transferring the domain name and the account associated with it to another person (a fee may be charged for this service).

Another important consideration here is that the domain registrar and the web host may be two different companies. If this is the case, the web host will also need to be contacted and again, appropriate evidence supplied. Access to the website files can be granted to next of kin or nominated person and the accounts name and files transferred to the nominated person.

Creating a digital register

A suggested solution to some of the problems mentioned above is to create a digital register (Bellamy et al 2013; Gibbs et al 2013c). A digital register contains the online locations and passwords of online accounts so that the files they hold may be destroyed or bequeathed to friends and relatives as appropriate. This register can be prepared by an individual, or can be arranged with the assistance of a legal specialist in Wills and Deceased Estates and is usually attached as an appendix to the Will. However, in Australia at least, the need to include a digital register as an appendix to a Will is not well-promoted by Wills and Deceased Estate specialists, nor other institutions tasked with managing the affairs of deceased persons, and much more educational work needs to be done in this regard.

Recommended steps needed to create a digital register to accompany a Will are as follows:

An audit needs to be done of all digital assets. All services should be considered – iTunes, Flikr, videos, Facebook, LinkedIn, domain names, blogs, websites, email accounts, application software, eBay, PayPal, online gaming accounts, YouTube, eBay, phone apps, data held on the cloud, Amazon, Google Docs, Dropbox, and other data storing facilities that may be associated with work, hobby, or personal business. Also there needs to be consideration of offline digital assets stored locally on CDs, DVDs, hard-drives, USB storage, or even on floppy disks.

A decision needs to be made about who is going to manage the digital assets upon the death of the individual concerned. This is usually the Executor of the Will, if they are technically adept enough to locate and access accounts, to identify the files associated with these accounts, and to carry out instructions in respect of these files. Alternatively, a friend or family member may be nominated to assist in this regard. The digital register and associated instructions may be an appendix to the Will, and like the Will, should be kept in a safe place known to the executor. Commercial service providers (e.g. Security Safe or Legacy Locker) offer specialist services that will store important data and passwords that allow nominated individuals access accounts and files in the event of death or disability.

Details need to be provided on where to find the ‘digital assets’, and clear instructions need to be given on how to access files and groups of files, and on exactly what to do with them upon death. It is important that information about locations, usernames and passwords are up-to-date as finding and gaining access to accounts after death can be extraordinary difficult, if not impossible, without this information. Enabling the digital legacy to be disbursed or deleted as appropriate, also reduces the possibility of identity theft and the possibility of reputational damage and distress brought to friends and relatives should privacy be violated upon death.

All of the above presupposes that a digital legacy is organised, labelled and described in such a way that enables instructions to be executed. There may well be many thousands of files in these accounts, and providing individual instructions for each is impractical. Thoughtful categorisation of files in archives is a useful thing to do for everyday purposes and will also make the job of deletion or disbursement of a digital estate much easier and more effective.

If accounts are to be closed immediately upon death, most companies require a formal process in which proof of death is provided (usually a death certificate or published obituary notice) by a person authorised to act on the deceased behalf (usually the Executor of the Will). Alternatively, many accounts will be closed at the expiry of a minimum period of inactivity – which may be as long as 9 – 12 months. If an online repository is to be closed and its contents destroyed or made inaccessible, this minimum period may be too long.

Other things to consider when preparing instructions:

If one opts to establish an online memorial site, should this be a Facebook memorial site or perhaps a separate website built specifically as a memorial for friends and relatives to view and interact with? What kinds of material are to appear on the site? Should one record a final video or write a final note to convey to family and friends posthumously or to post on a memorial site? Who will take responsibility for establishing and maintaining the site?

Should social-network accounts be closed, or remain open as a place for friends and relatives to converse and reminisce?

It is always good practice to create local archives of online personal files periodically. This is increasingly easy to do and most of the larger social software companies (e.g. Facebook, Google and its subsidiaries) now offer account downloading facilities.

Conclusions and future implications

Given the size of the digital economy, and the plethora of services and products now available to the public, it is difficult to ascribe a simple fix to the legacy problems that follow when users of these services die. However this is not to say that developers of software products and services could not do much more to consider the issues that will only become much more acute in the future. Some of the issues are as follows:

There is no single, established mechanism for archiving and re-repurposing the digital artefacts of the deceased, nor to insure their long-term preservation with appropriate descriptive metadata to designate digital items in context. Best practices are still evolving, and must be assembled from multiple sources.

There is no single, established mechanism for establishing and maintaining online memorials. Best practices are still evolving and must be assembled from multiple sources.

Many online systems and service providers do not have procedures in place to cater for the death of a user. The ability to designate an inheritor of one’s data in the user’s preferences or indeed to request the deletion of ones data upon death is missing in almost all systems. This creates unnecessary complications for the next of kin.

There are significant internal inconsistencies and recourse to ad-hoc arrangements in how major companies deal with the death of a client. Even where companies have established policies, the transfer of digital assets to another user is often difficult in practice as these policies are hard to find, are expressed in obscure legalese, are difficult to interpret, and they may have no-one in particular whose role it is to manage the situation.

Currently, individuals need to take responsibility for their digital assets. Most importantly, this includes creating and maintaining a local archive of one’s most important digital assets, making decisions in regard to the disbursement of that archive, and leaving clear and accessible instructions to enable online digital assets to be accessed and then deleted or disbursed as appropriate. This responsibility remains almost entirely unfulfilled.

The importance of creating personal digital archives is not well-established in the popular imagination. The products and services available to facilitate this are inadequate, and digital service providers could offer much more leadership in this respect.

Protocols and practices associated with bequeathment of digital assets alongside material and financial assets in the context a legal Will needs to be further developed by relevant agencies.

Introducing personal archival practices early in one’s life is now an important consideration, given that data is acquired from a very young age, is stored remotely in an ephemeral way, and is easily forgotten.

Institutional archives and libraries could provide a lead in terms of educational material and services in regard to best-practice archiving. Personal digital archives often overlap with local or even national histories so it is in the interests of archives to innovate in this area.

Online service providers that store our assets clearly have a role to play in remediating this situation, but institutional archives and libraries could also provide a greater lead. Protocols and practices about the bequeathment of digital assets need to be further developed to take their place alongside those that pertain to material and financial assets. Individuals and families are in need of educational materials and services for the construction of personal digital archives, and communities are in need of these materials and services for the construction of community and national archives, built in part from an aggregation of family archives. The ability to construct an archive, to designate an inheritor of one’s digital legacy or indeed to request the deletion of all or some of this legacy, is missing in many systems.

The answer is clearly not to be found in devising manual systems, or encouraging people to use manual systems, and we look to a time when the work required to curate an ever increasing digital legacy held by many millions of people may be addressed by automated or semi-automated systems.

One way forward is to repurpose the automated and semi-automated systems used by intelligence services such as Echelon and Prism; by data-mining companies such as Axciom and Neilson Claritas; and by the data gathering and analytics systems used by Google, Facebook and the like to process and store personal information. Our legacy is out there. It just needs to be selectively culled, organised and brought together. The algorithms used by these surveillance systems can search out, identify, tag, categorise and cross reference the plethora of images, emails, and other digital files we produce in a lifetime, using heuristics based on rules we determine, and behaviours we exhibit, to curate and store these files. Such an “intelligent agent”, or “digital curator”, might sit in the cloud, watching traffic across our desktop, pad, and smart-phone, tagging and categorising in real time, learning from our filing practices and generalising from our explicit instructions, requesting advice and permission as needed, thus bringing our legacy together in an organised and comprehensible package. Of course, a fundamental shift in the openness and control of online processes in favour of citizens and consumers is required, and the task of repurposing surveillance systems to create such an agent is clearly a formidable one. But so is the problem. Without a “digital curator”, our history is dispersed to the digital wind – not gone, and even proliferating, but not in relation, and not to hand.

Settling Estate: What Do I Do When Someone Dies?
Settling the estate can be a trying process, particularly for those grieving. By following these practical steps and being aware of state law, you can ease the process for everyone involved. Settling the estate means safeguarding your loved one’s property during the administration process, paying debts and taxes, and distributing the assets of the estate to those who are entitled to receive it.

Note: The following legal and logistical information is most readily applicable to residents of California. However, where California’s laws or procedures differ greatly from those of the majority of other states, we have made an effort to make our out-of-state readers aware of this.

1. Initial Tasks

Handling the estate starts with a few practical tasks:

Determine Who Is the Executor or TrusteeConsult with an attorney if it is unclear who has been appointed by the will or trust.

Arrange for Temporary Care of Minor Children and Other DependentsYour first task is to set up temporary care for any minor children and other dependents of the person who died. You might need to look into day care, hospice, or pet care services for temporary assistance until a longer-term solution can be found. For information on the legal process, see 3. Minors and Dependent Adults below.

Obtain Certified Copies of the Death CertificateYou will need death certificates for a variety of purposes, so it’s a good idea to have plenty of copies. Read our section about the Death Certificate in Immediate Help for more information.

Look for a Will or TrustLocate a will, trust, or any other important after-death documents. For tips on locating these documents, see our section on Locating Important Documents in Immediate Help.

Collect the MailCollecting the person’s mail protects his or her privacy, but it also serves an important administrative function. The mail will help you identify the person’s property, because account statements and other documents relating to his or her property will arrive by mail. Bills will arrive by mail too, which will help you identify potential creditors.

Paying the Bills
After a death, bills will continue to arrive for expenses incurred during the person’s lifetime. These may include medical bills, credit card statements, utility and cell phone bills, invoices for mortgage payments, tax bills, insurance premiums, and so on. Here are a few tips for how to handle bills:

Surviving spouses may be personally liable for the person’s debts, depending on state law. If you are a surviving spouse, consult with an attorney about whether and to what extent you should pay your spouse’s bills.

If you are not the surviving spouse, do not pay bills from your own personal bank accounts. If you do, you may be deemed to have assumed responsibility for paying the debt.

Legitimate bills should be paid from accounts that belonged to the person, and such payments should be made only by someone who is authorized to make decisions, such as a Trustee or Executor. Forward bills to the Trustee or Executor, or if no one is yet serving as Trustee or Executor, hold the bills temporarily without paying them until someone is appointed to serve.

It is the job of the Trustee or Executor to identify what bills are legitimate, to fulfill creditor notification requirements, and to accept or reject creditor claims. The Trustee or Executor should consult with legal counsel about completing these tasks, because failure to fulfill the legal requirements could expose the Trustee or Executor to liability.

If creditors press for payment before a Trustee or Executor has been appointed, let them know that all bills are on hold pending appointment of an authorized legal representative. If the creditor threatens legal action or files a claim, contact a lawyer immediately.

Secure the Residence, Automobiles, and Tangible PropertyLock the person’s residence and car, and allow no one to take tangible personal property that belonged to them. Tangible personal property includes furniture, antiques, artwork, as well as personal effects like clothing, jewelry, and personal documents. If there are people you do not know who have keys to the house, consider changing the locks. If you cannot reliably secure the residence, consider packing up the tangible personal property and moving it to a secure location such as a storage locker. If people you do not know have extra sets of keys to the car, move the car to a locked garage.

Notify Credit Card Companies and Credit Reporting AgenciesToprotect against fraud, notify credit card companies that the person has passed away, and that no one should be permitted to make additional charges to the credit cards following the date of death. Let them know that the Executor or Trustee intends to close the accounts. Send a letter to each of the three major credit reporting agencies, Equifax, Experian, and Transunion, letting them know that the person has passed away and instructing them that no one should be allowed to use his or her name or social security number to apply for new credit.

Notify the EmployerIf the person was employed at the time of death, notify the employer. Arrange for delivery of the final paychecks, and deposit the income checks into a bank account held in the name of the person or the person’s living trust. Ask the employer to identify the benefits provided by the employer to the person, such as health insurance coverage, life insurance, and retirement plans.

Notify Social SecurityIf the person was receiving social security checks, notify the Social Security Administration immediately. Often the funeral home or service provider will send a notice as a courtesy. Otherwise, call the Administration at the phone number provided on their website www.ssa.gov. Some family members may be eligible to collect a portion of the person’s Social Security benefits. Ask the Administration to provide you with information on survivor benefits, or consult with an attorney.

Notify Veterans Affairs AdministrationIf the person was a U.S. war veteran, call the federal Department of Veterans Affairs and have any veteran benefit payments stopped. There are cash benefits of $300 to $2,000 to the family members of veterans depending on the type of duty and the situation at death. Also, ask the VA about burial benefits, or visit the VA burial benefits page here. You will need the person’s VA number or service number and active dates of service.

2. Administering and Distributing Assets

How the assets of the person who died are administered depends on whether he or she left a will or a trust. To administer his or her property, you must meet specific legal requirements. Failing to follow the process can result in personal liability for the Trustee or Executor. We strongly recommend that you consult with an attorney who is experienced in trust and estate administration to advise you on the legal requirements. The attorney should be licensed to practice law in the state where the person was residing at the time of death. To find attorneys in your area, look up Legal Counsel on our Local Resources page.

Revocable Living TrustA revocable living trust, also simply called a living trust, has become a widely used estate-planning tool, partly for the purpose of avoiding probate, which is further discussed below. A trust is an agreement between a “Grantor,” the person who creates the trust and transfers property into the trust, and a “Trustee,” the person who holds the property and administers it for the benefit of “beneficiaries.” When a Grantor sets up a “revocable living trust” for his or her benefit, he or she typically also serves as the initial trustee. After the Grantor dies, the trust becomes irrevocable, and a named successor steps in to serve as trustee. The successor trustee must hold or distribute the trust property for the named beneficiaries and in accordance with the instructions set forth in the trust agreement. The trust administration process occurs privately, for example, without Court involvement or oversight.

What if Property is not in the Trust?If the person set up a revocable living trust, but his or her property was never transferred into the trust after death, you should consult with an attorney. Depending on the circumstances and state law, such property could potentially be confirmed to be property of the trust. If not, such property will be subject to probate, as discussed below.

Last Will and TestamentIf there is no trust, but the person left a will, the assets of the estate must be administered through “probate.” Probate is the Court process for settling the estate of someone who died. A family member must petition to have the will admitted to the Court and ask for an Executor to be appointed. Once the Executor receives “letters of administration,” he or she must fulfill the legal duties set forth under state law (For example file an inventory of assets, notify creditors, and pay debts and taxes.), and after the administrative tasks are completed, the Executor must distribute the estate property in accordance with the instructions in the will and under the supervision of the Court. Probate fees can run into the tens of thousands of dollars, depending on state law, and probate can take one to two years to complete. High fees and long delays are two of the reasons why many people decide to set up revocable living trusts—property in a trust generally is exempt from probate.

No Estate PlanIf the person left no trust and no will, he or she is said to have died “intestate.” An intestate estate is subject to probate, too. Under intestacy, the person’s property must be given to whoever is entitled to receive it under state law. Typically, a surviving spouse and descendants are the first in line to inherit. If the person had no surviving spouse and no living descendants, then his or her parents would generally inherit next, and if parents are no longer alive, siblings and their descendants are typically next in line. The specific rules of intestate succession vary by state law.

Small Estate Administration and Spousal PetitionsIn some states, there are exceptions to the probate requirement. If your loved one’s estate is a “small estate” as defined under state law, a simpler process may be available to transfer assets to the beneficiaries. In California, for example, if the estate has no real property with a date-of-death market value of more than $50,000 and the estate has a total value of less than $150,000, the beneficiaries of the property can have the assets transferred to themselves by completing affidavits. Also in California, if the person is survived by a spouse, the surviving spouse can use a spousal petition to take title to property he or she is inheriting, instead of having to conduct a formal probate proceeding.

Joint PropertyJoint property, such as real property titled in joint tenancy with right of survivorship or joint bank accounts, transfers automatically to the survivor upon the death of either joint owner. Joint property typically is not subject to probate under state law. If you are the surviving owner, you must complete paperwork to remove the owner who has died from the title. For example, for real property, an affidavit of death of joint tenant must be recorded with the County where the property is located. The affidavit removes the name of the person who died from the property and places it entirely in the name of the surviving owner.

Pay-on-Death Account or a Totten TrustPay-on-death (“P.O.D.”) accounts or a Totten trust automatically transfer to the payee upon the death of the owner. Like joint property, these type of accounts bypass probate. You should notify the banks where the person held accounts of his or her death, and provide them a copy of the death certificate. The banks will then contact any beneficiaries directly. If you are the beneficiary, the bank will likely ask you to complete forms to transfer the account to your name.

Life Insurance Policies and Retirement PlansLife insurance proceeds and retirement plans are paid directly to the beneficiaries named on the policies and plans and are not subject to probate. If the person failed to name beneficiaries, however, the life insurance proceeds and retirement plans will have to be paid to the person’s estate, which could trigger a probate. Contact the institutions holding the life insurance policies and retirement plans, and inform them of the person’s death. The institutions will contact the named beneficiaries directly.

3. Minors and Dependent Adults

Guardian of the PersonIf the person who died left minor children, and the other parent is no longer alive, a guardian “of the person” will have to be appointed for the children by the Court. The guardian of the person is the individual who is granted physical custody of the children and is responsible for their care and upbringing until they reach age 18.

Nomination of Guardian by Person Who DiedIf the person left a will, check whether the will included a nomination of guardian. A nomination of guardian is the parent’s expressed wish for who should take custody of the children in the event that both parents have died. Courts typically place great weight on the wishes of the parents when appointing a guardian, but keep in mind that the wishes of the parents will not necessarily be determinative. The Court may appoint a different person if the Court believes that doing so would be in the best interest of the children.

Assets of MinorsIf both parents have died, their minor children will also likely inherit their property. Minors, however, cannot legally manage their own assets. If the parents left the property to the children in a trust, the Trustee will be in charge of managing the assets for the minor children under the terms of the trust. If there is no trust, the Court will likely have to establish a guardianship “of the estate.” The guardian of the estate is responsible for managing the minor’s assets until age 18.

Dependent AdultsIf the person who died was caring for an elderly parent or another dependent adult, check whether the dependent adult has a general durable power of attorney or a living trust. If so, the adult’s affairs should be handled by his or her agent or trustee. Contact that agent or trustee, and contact the adult’s attorney, and inform them of the person’s death. If there is no power of attorney and no trust, the Court may have to establish a conservatorship for the adult. A conservatorship is similar to a guardianship, except that the subject is an incapacitated adult, instead of a minor child. A conservatorship gives the conservator authority over the incapacitated adult’s physical care and financial matters.

To learn how to establish a guardianship for a minor or a conservatorship for an incapacitated adult, consult with an attorney.

4. Tax Considerations

Estate TaxesIf you are serving as Trustee or Executor, you should consult with legal counsel and an accountant about whether estate tax returns must be filed. The estate tax is a tax on all property owned by the person at the time of death. In addition, you may include in the estate certain gifts made during life for estate tax purposes.

Federal Estate TaxIn any given year, there is an applicable federal estate tax exemption. The value of the estate that exceeds the exemption is subject to the tax. Under the Tax Relief Act of 2010, the applicable exemption for 2011 was set at $5,000,000, and in 2012, the exemption increased to $5,120,000. The 2011 and 2012 maximum federal estate tax rate is 35%. In 2013, however, the exemption is scheduled to drop down to $1,000,000, and the maximum rate is set to increase to 55%. Anyone whose estate at the time of death has a value in excess of the applicable exemption amount in that year is required to file an estate tax return. You may need to have property appraisals done to determine accurate date-of-death values. In addition, for a married person who passes away in 2011 and 2012 with a surviving spouse, an estate tax return may be filed to preserve the “portability” of the person’s federal estate tax exemption, even if the value of the estate is below the exemption amount. For help deciding whether to file an estate tax return, please consult with an attorney or accountant.

State Estate TaxesAlso ask your attorney or accountant whether the state where the person who died was living has a state-level estate tax. The state-level applicable exemption amount and tax rate may differ from the federal estate tax. A few states, like California, have abolished the state estate tax.

Income TaxesA personal income tax return must be filed for the first part of the last year of the person’s life through the date of death. The surviving spouse may file as married jointly on behalf of both spouses. For the second part of the year, a fiduciary tax return will have to be filed for income earned by the person’s estate or trust after the date of death. For example, if the person owned rental property held in a trust, the trust would have to file an income tax return, reporting rental income for the second part of the year following the date of death. Special rules apply to income earned during life but received only after death. Seek the assistance of an attorney or an accountant to prepare the income tax returns.

Tax ID NumberYou’ll need to get a tax ID number for the Estate or Trust in order to file a fiduciary tax return. For more information on how to obtain a tax ID number, visit www.irs.gov, or ask your attorney or accountant.

Capital Gains TaxCapital gains taxes are based on an appreciation in value. For example, if someone purchased stock in 2002 for $300,000 and then sold it in 2012 for $400,000, there would a capital gain of $100,000. That “capital gain” of $100,000 would be subject to a 15% federal capital gains tax, as well as state capital gains tax. The purchase price of $300,000 in this example is called the “basis” and the sale price of $400,000 is called the “amount realized.”

For property that is inherited, however, the basis is “stepped up” to the full fair market value at the date of death. In the example above, if instead of selling the stock, the owner dies when the stock has a value of $400,000, and the heirs of the person then immediately sell the stock for $400,000, the basis would be stepped up from $300,000 to the $400,000 value on the date of death, and there would be no capital gain. Capital gains tax could be due, however, if the value appreciates between the date of death and the date of sale. If you have inherited property and are considering selling it, consult with a tax professional about whether a capital gains tax could be due.

5. Insurance

What, if any, insurance policies of the person who died should be kept in effect following the date of death?

Homeowners and Renters InsuranceYou should maintain the homeowners and renters insurance policies so long as the property remains in the Estate or Trust, to protect the Estate and Trust assets in case of property damage or lawsuits. Cancelling the coverage could actually expose the Executor or Trustee to liability for breach of fiduciary duty, if property damage or lawsuits deplete the assets as a result of lapsed insurance coverage. The Executor should inform the insurance company of the death in writing and request that the Estate be added to the policy as a “named insured” as soon as possible in order to secure the same rights as the person who died.

Automobile InsuranceYou should consider maintaining the insurance policy on the car if the rates are favorable. Most auto insurance companies will continue to cover the vehicle and the new legal owner at the same rate under the “permissive use” clause of the insurance agreement. Alternatively, if the car will lay idle during the administration period, or if it will be sold, you can consider registering the car for “planned non-operation” with the state DMV and cancelling the insurance policy, to save expenses for the Estate.

Health InsuranceThanks to COBRA (Consolidated Omnibus Budget Reconciliation Act, 1986), if the person who died received employer health insurance, surviving spouses and dependents will be eligible for continued coverage following his or her death, if they were originally covered. You can contact the insurance company or the employer in order to remove the person from coverage, while continuing coverage under the existing policy for qualifying family members.

6. Assets of the Estate

Certain assets raise unique issues that the Executor or Trustee may need to address.

Personal ResidenceIf the personal residence of the person who died was a rental, to save ongoing expenses, the Executor or Trustee may decide to terminate the lease, vacate the premises, and place all of the tangible property in storage until they are distributed. If the person owned his or her own home, check whether the will or trust hands over the residence to anyone. If not, the Executor or Trustee should determine whether any of the residual beneficiaries wish to take ownership of the property, provided there are other equal assets that can be distributed to other beneficiaries.

Alternatively, the Executor or Trustee may sell the property and distribute the net proceeds. A title search should be done to find out whether there are mortgages or liens against the property. If the residence is underwater, the Executor and Trustee would have to decide whether to pursue foreclosure, a deed in lieu of foreclosure, or a short sale as a means of disposing of the property. For assistance with underwater properties, you should seek the advice of an attorney and a realtor.

If the surviving spouse, minor children, or other family members were residing with the person at the time of death, they might have the right to continue living there during the administration of the estate or trust, depending on state law. Consult with an attorney about whether occupants can be allowed to remain in the person’s home and for how long, or whether they will have to move from the premises.

Other Real EstateIf the person who died owned other real estate, check whether there are tenants occupying their property. If so, look for a copy of the lease agreement among his or her papers, and arrange for rental income checks to be sent to the Executor or Trustee. Find out whether the person had hired a property management company, and if so, request a copy of the property management agreement. If the property will be sold, you should consult with an attorney and a realtor as to whether steps should be taken to remove the occupants from the premises before the property is listed for sale.

Bank AccountsIf there is no trust, the accounts of the person who died should be retitled to the name of the estate. To do so, the bank will likely request from you copies of the death certificate and the letters of administration, as well as the Estate’s tax ID number. You can consolidate cash accounts into a single Estate account for ease of administration.

Business InterestsIf the person was the owner of a small business, check the will or trust for instructions as to the disposition of the business. The death of the owner can result in a sudden and steep decline in the business value. To mitigate against potential loss, you can immediately contact any co-owners or senior staff members to arrange for the continuing operation of the business, and to set up a system for collecting income and paying expenses during the administration of the estate or trust. The executor or trustee should decide as quickly as possible, based on the instructions in the will or trust, whether the business will be closed, sold, or liquidated. If the business is put up for sale, an appraiser may be needed to determine the value of the business. If the person was a licensed professional, for example an attorney, architect, dentist, or psychologist, the state may impose special rules regarding the winding up or sale of the business. Consult with an attorney to discuss the legal requirements.

Tangible PropertyYou should identify items specifically entrusted to anyone in the person’s estate plan documents, and secure such items until they are ready to be distributed to the beneficiaries. If there are valuable vehicles, artwork, jewels, or antiques, consider having those items appraised. All remaining items of tangible property are typically distributed equally to the residual beneficiaries—that is in shares of roughly equal value, as the beneficiaries agree among themselves. For example, one way the beneficiaries can divide up the items is to take turns choosing them; perhaps you can draw cards to determine who gets to choose first. Read our blog post about dividing family heirlooms for tips.

Another option you have is to sell the remaining tangible property– for example, in an estate sale. There are many companies that manage such sales in return for a fee or percentage of total sales, or you can conduct one yourself. The net proceeds would then be distributed to the beneficiaries. Look up Estate Liquidation & Moving services on our Local Resources page. You can also make donations of the remaining items to one or more charitable organizations. Listed below are resources for donating different types of items:

CDs and DVDsYou may be able to sell CDs and DVDs at a local used record store or online. Alternatively, you can try donating items to your local public library or school, or to organizations that are building libraries, as described in this article by Planet Green.

Computers and ElectronicsThere are many regional options for recycling obsolete or damaged computers or electronics, or so-called “e-waste.” Some organizations will pick up these items for you. You can search the EPA’s directory for such organizations near you.

Children’s ToysNew or gently used children’s toys, stuffed animals, or books can be donated to Stuffed Animals for Emergencies (SAFE), an organization that collects items to benefit children during emergency situations such as fire, illness, accidents, neglect, abuse, homelessness, or floods.

Art SuppliesItems like art supplies, boxes, string, fabric, and paperboard can be donated. Web search “Creative Reuse Center” to locate a center near you where you can donate such miscellaneous items to help teachers, businesses, and artists.

Wedding DressYou can donate used wedding dresses to charitable organizations such as Brides Against Breast Cancer, a group that is funding an initiative called Making Memories to help those who are losing the battle with breast cancer.

AutomobilesYou will have to determine, based on the person’s will or Trust, who is the intended beneficiary of his or her automobile. To transfer title to the beneficiary, contact your state’s DMV and complete the required paperwork. Be prepared to provide the DMV with a certified copy of the death certificate as well as copies of valid registration papers and insurance coverage. If there is no named beneficiary for the car, and no residual beneficiary wishes to have the car, the Executor or Trustee may decide to donate it rather than trying to sell it. Habitat for Humanity, for one, accepts donated cars, sells them, and uses the funds to help build and secure affordable housing for at-need families.

Leftover MedicationsSimilar to batteries and electronics, you should safely dispose of leftover medications. They are generally comprised of a wide variety of chemicals that can be hazardous when combined, and highly environmentally detrimental when they end up in landfills or filter into the water supply. The federal Drug Enforcement Administration recommends taking medications to local take-back centers. To find a take-back center near you, ask your local pharmacy or contact your local water management agency. You can also donate leftover medications to organizations such as the Afya Foundation and Aid for AIDS, which channel unused medications to Third World countries.

Email and Networking AccountsConsider hiring termination services to terminate the person’s email accounts and social and business networking accounts on websites such as Facebook and LinkedIn. Each company has its own policies as to what happens to online accounts after death, and whether the person’s online personal information or records can be accessed. See 7. Digital Death for more information.

Asset Search ServicesFinally, if you think the person who died may have had other unidentified property, you can consider hiring asset search services in order to locate any unknown assets, such as real property or accounts in other states. You can search state databases, or use services like Missing Money to locate unclaimed assets or property.

7. Digital Death

With so much of our lives online, digital property is becoming an increasingly important part of estate planning and settling the estate, just like physical property. When someone dies, their online accounts, including email and social media accounts, will live on unless otherwise dealt with.

Digital Estate ServicesThe person who died may have stipulated their wishes in their will regarding their digital property. He or she may have also used an online service. Some companies allow you to create a “digital safety deposit box” with all of your account information stored in one place, and a beneficiary listed for each account. Whoever the person named as a “verifier” will be asked to verify his or her death, and then the beneficiaries of the person’s respective accounts will be notified.

If no arrangements regarding digital property were made, or if you cannot find out if they did, you may still be able to access or delete their online accounts. Currently, Gmail and Hotmail will mail the person’s information to the estate holder. Facebook will not grant access to the account, but if you contact them you can request that the person’s profile be taken down or turned into a memorial page.

Only five states – Oklahoma, Idaho, Rhode Island, Indiana, and Connecticut – currently have laws regarding digital property assets, though more are likely on their way. For information on individual state laws where they exist, visit the Digital Estate Resource page. Or for Digital Asset Services, visit our Local Resources page.